From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences. More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm. First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide. Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin. Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.

Earlier today, in United States v. Ousley (No. 11-2760) (Manion, J.), the court rejected an Eighth Amendment challenge to 21 U.S.C. § 841(b)(1)(A), which, in pertinent part, requires a life sentence for certain crack offenders with two prior drug felonies. Despite Ousley’s reliance on Graham and Miller, the Seventh Circuit correctly noted that neither decision expressly overturned either Harmelin or Ewing. Constrained to treat those older cases as good law, the Seventh Circuit seemed to interpret Graham and Miller narrowly as decisions about juvenile sentencing.

Ousley did have an interesting argument to try to distinguish Harmelin. Since his life sentence was based on a crack offense, and would not have been mandatory for a powder cocaine offense involving the same drug quantity, Ousley argued that his sentence runs counter to an emerging national consensus against crack-powder sentencing disparities. However, the Seventh Circuit did not find such a consensus; although the Fair Sentencing Act of 2010 softened crack-powder disparities, the Act did not eliminate them.